What do pro- and anti-reform legal experts think of Isaac Herzog’s proposal?

Since President Isaac Herzog presented his five-point plan on Sunday for negotiations on the controversial judicial reforms, politicians and activists on both sides of the debate have expressed reservations and approval for them.

Herzog contended that there should be a new law – Basic Law: Legislation – that will establish boundaries between government branches and allow for judicial review only for regular laws, under circumstances to be negotiated.

Yossi Benkel, senior partner at the Shibolet law firm, part of the leaders of the Black Robes Protest group, said that judicial review shouldn’t be up for negotiation, and has been one of the major tools by which government excess is contained.

The protest group leader said that he wasn’t against the idea of implementing basic law legislation, but said “it needs to be developed through agreement so it won’t be nullified by the next coalition.” He also warned that restricting the judiciary’s right to review matters pertaining to basic laws could be abused. Since the current way of legislating a basic law was merely to call it a basic law, the legislature could simply call any item a basic law.

Israel Law and Liberty Forum Executive Director Yonatan Green, giving his personal opinions on Herzog’s proposal, said that while the point about judicial reform syncs with the current Rothman/Levin proposals, “he leaves out the specifics which are really what the argument is about.”

Benkel also took issue with specifics, but said the details that exist make negotiation difficult, as they make it hard to propose new ideas.

Green shed light on specific Herzog points concerning the Judicial Selection Committee, on which reformists wish to see a majority of supportive elected political officials rather than a majority of judges and lawyers.

“It does seem that there is room for change with Herzog,” said Green. “The way that the president has presented the points suggests that he accepts that people are sovereign through their representatives.”

Benkel said the judge selection committee was perhaps the most important item, and was a non-starter for discussion. Allowing politicians full power to appoint judges would make the judiciary subordinate to the legislative and executive branches. He said that Israel had very few checks and balances in its systems, and the judiciary was really the only power scrutinizing government action.

On the matter of the reasonableness clause, “Herzog is suggesting something that is softer than some of the proposals being suggested,” Green noted. The president proposed that the political camps should come to an agreement on when the clause should be used.

The reasonableness clause holds that the High Court of Justice can intervene in administrative matters that go beyond the scope of what a reasonable and responsible authority would undertake.

Green agreed with Levin that there was no place for the clause in Israel’s system. Weighing the different interests and what is reasonable and responsible is what the government was elected to do. Further, the courts have many other legal tools at their disposal.

Benkel noted that one thing lacking from Herzog’s proposal was that it didn’t touch on the matter of government legal advisers, whose independence Levin is seeking to restrict.

“It was a mistake by President Herzog to not include legal advisers in the proposal,” said Benkel, who described them as frontline gatekeepers. He explained that they represented the law and presented the legal options available to ministers, thereby helping them make lawful choices.

Proposing administrative changes to judicial system

Herzog also proposed administrative changes to the judicial system, which were not quite items of contention in the reform debate. He suggested that more judges need to be appointed to clear the backlog of cases, to improve efficiency and consequently boost public faith in the judiciary.

“I think it’s admirable and he’s right to want to address these issues,” said Green. “However I think he’s incorrect on both counts in terms of solutions.”

Green said Herzog’s comparisons to OECD countries when making his case for the need for more judges was faulty. It was more correct to compare Israel to common law countries. “This doesn’t necessarily mean that Israel doesn’t need more judges, but the statistical point is incorrect,” he said.

He also noted that while the judiciary has an inefficiency problem, it is “inherently linked to the judicial culture, which evolved through the way that judges interpret statutes and adhere to previous rulings. The past 30 years has seen the court less and less obligated to follow the letter of the law, and this will inevitably lead to higher levels of litigation.”

Perhaps the most controversial element of the Herzog proposal is the condition of stopping the process while negotiating. Reformists want to negotiate while the legislative process continues.

Green said that the reformers have always been prepared for negotiation. “On the level of principle, I think it’s very odd to agree to negotiate but with preconditions,” said Green, noting that the Palestinians would do the same with peace negotiations. “I don’t think anyone would suggest that the High Court stop rulings on controversial cases.”

Green said that Herzog is likely aware that pro-reformists are willing to talk and has lent legitimacy to the idea of proper negotiation on the reforms, offering a hand to the anti-reform camp, which has climbed up to a spot that it can’t climb down from.

“Lapid was right not to negotiate without preconditions,” Benkel said, adding that he preferred Herzog’s first proposal, which called for a cessation of legislation.

Continuing the legislative process” is like a loaded gun, he said. Rothman and Levin can use it to leverage a better position by making the opposition make hasty choices.

Benkel said that when negotiations do start, Herzog would be a good mediator.

“I know personally that he has an understanding of law, which is needed for mediation on this subject,” the law firm partner said. “He also has the right temperament.”